- From: Andy Oram <andyo@oreilly.com>
- Date: Wed, 10 Oct 2001 09:06:32 -0400 (EDT)
- To: www-patentpolicy-comment@w3.org
Previous complaints about the proposed Patent Framework have focused on its possible restraint of development in technology, protocols, applications, etc. No complaint I have yet seen points out the dangers of the proposed framework for content control. The concepts of fair use (allowing users to reuse material for legitimate educational purposes, commentary, and criticism) and of derivate works (allowing users to add value to information through adding to it innovatively) are threatened by current trends in digital rights management. As W3C members undoubtedly know, DRM has weaknesses that require it to be bolstered by laws like the Digital Millennium Copyright Act (DMCA) that lead to heavy-handed restrictions on the distribution of software and information. I believe it to be critical that the World Wide Web not put in place a DRM system that cuts off fair use and derivative works. Yet the proposed Patent Framework could do so as follows: 1. Someone can invent a file format and protocol that contains the kinds of DRM the content providers have been talking about for years, while patenting the key features that enforce the rules on viewers. 2. The format and protocol get adopted as specifications. 3. Content providers pay software companies to create browsers and servers that accommodate the format and protocol. Licensing ensures that all systems preserve the intended controls. (Licensing need not, however, prevent systems from over-reaching the restrictions or removing ancillary user rights.) 4. Anyone developing an alternative server or browser gets sued for patent infringement, in addition to any criminal penalties imposed by the DMCA or the recently proposed Security Systems Standards and Certification Act (SSSCA). We already see content providers imposing controls on users such as making it difficult to save a document to disk or even cut and paste a few words, trying to force users to come through a home page instead of using deep links, and tracking user behavior in order to build a profile for advertising. These and other questionable practices could become quickly enshrined in Web protocols and file formats if the W3C adopts the proposed Patent Framework. The problem cannot be solved by tweaking. It doesn't help for the proposal to say that the "core Web infrastructure" should remain on a royalty-free basis--the damage is done by the license itself, not by royalties. Furthermore, the damage can occur outside the "core" on the application layer. Nothing in the proposed framework allows independent developers to access the new formats without keeping the controls. If the stated purpose of a system is to limit use, a license requiring such controls would ipso facto be considered "reasonable" and "non-discriminatory." I understand that, if the Web is to stay free, we must still face the problem of how to work around pre-existing patents taken out by corporations or individuals who are happy to hold the technology ransom and feel no loss if the technology never becomes a W3C recommendation. We may have to rely on moral exhortation and facing down the opponent in these cases; luckily, a large percentage of innovations stem from government-sponsored or public research (although the rush of universities toward patents and commercial partnerships threatens this too). Andrew Oram Member, Computer Professionals for Social Responsibility Editor, O'Reilly & Associates (This comment represents my personal opinions only) O'Reilly & Associates 90 Sherman Street Cambridge, MA 02140-3233 617-499-7479 andyo@cpsr.org
Received on Wednesday, 10 October 2001 09:08:53 UTC